Wilborn v. Commonwealth

Massachusetts Supreme Judicial Court

Wilborn v. Commonwealth

861 N.E.2d 391, 448 Mass. 1010, 2007 Mass. LEXIS 23

CourtMassachusetts Supreme Judicial Court

DecidedFebruary 7, 2007

StatusPublished

Cited by2 cases

This text of 861 N.E.2d 391 (Wilborn v. Commonwealth) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wilborn v. Commonwealth, 861 N.E.2d 391, 448 Mass. 1010, 2007 Mass. LEXIS 23 (Mass. 2007).

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Opinion

A jury convicted the petitioner in 1978 of murder in the first degree, as well as rape and kidnapping. We affirmed the convictions and, after plenary review pursuant to G. L. c. 278, § 33E, declined either to reduce the murder verdict or to order a new trial. Commonwealth v. Wilborne, 382 Mass. 241, 255 (1981). At least five subsequent motions for postconviction relief were denied by judges in the Superior Court. Twice, the petitioner unsuccessfully petitioned a single justice of this court for leave to appeal, pursuant to the gatekeeper provision of G. L. c. 278, § 33E; the petitioner moved to dismiss a third petition before it was decided, and did not seek leave to appeal from the denial of the remaining motions.

In 2002, the petitioner filed a G. L. c. 211, § 3, petition in the county court seeking relief that either was sought or could have been sought in the Superior [1011]*1011Court.² A single justice of this court eventually denied all relief without a hearing. We affirm.

The case was submitted on briefs. John Wilborn, pro se. Kenneth E. Steinfleld, Assistant District Attorney, for the Commonwealth.

Relief under G. L. c. 211, § 3, is extraordinary, and “a single justice does not err or otherwise abuse his discretion in denying relief where adequate alternative remedies exist.” Allen v. Commonwealth, 446 Mass. 1008, 1008 (2006). As in the Allen case, the petitioner in this case received plenary review in his direct appeal. See G. L. c. 278, § 33E. While he thereafter was free to pursue postconviction relief in the Superior Court, he was “ ‘required to follow the specific provisions of § 33E for appealing from a Superior Court judge’s denial of a motion seeking postconviction relief,’ including petitioning ‘a single justice for permission to appeal.’ ” Allen v. Commonwealth, supra, quoting Lykus v. Commonwealth, 432 Mass. 160, 162 (2000). The fact that the petitioner “failed to pursue the alternative route or pursued it unsuccessfully” does not create a right to relief under G. L. c. 211, § 3. Tavares v. Commonwealth, 447 Mass. 1011, 1011 (2006).³

The single justice neither erred nor abused his discretion in denying relief.

Judgment affirmed.

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A jury convicted the petitioner in 1978 of murder in the first degree, as well as rape and kidnapping. We affirmed the convictions and, after plenary review pursuant to G. L. c. 278, § 33E, declined either to reduce the murder verdict or to order a new trial. Commonwealth v. Wilborne, 382 Mass. 241, 255 (1981). At least five subsequent motions for postconviction relief were denied by judges in the Superior Court. Twice, the petitioner unsuccessfully petitioned a single justice of this court for leave to appeal, pursuant to the gatekeeper provision of G. L. c. 278, § 33E; the petitioner moved to dismiss a third petition before it was decided, and did not seek leave to appeal from the denial of the remaining motions.

In 2002, the petitioner filed a G. L. c. 211, § 3, petition in the county court seeking relief that either was sought or could have been sought in the Superior [1011]*1011Court.² A single justice of this court eventually denied all relief without a hearing. We affirm.

The case was submitted on briefs. John Wilborn, pro se. Kenneth E. Steinfleld, Assistant District Attorney, for the Commonwealth.

Relief under G. L. c. 211, § 3, is extraordinary, and “a single justice does not err or otherwise abuse his discretion in denying relief where adequate alternative remedies exist.” Allen v. Commonwealth, 446 Mass. 1008, 1008 (2006). As in the Allen case, the petitioner in this case received plenary review in his direct appeal. See G. L. c. 278, § 33E. While he thereafter was free to pursue postconviction relief in the Superior Court, he was “ ‘required to follow the specific provisions of § 33E for appealing from a Superior Court judge’s denial of a motion seeking postconviction relief,’ including petitioning ‘a single justice for permission to appeal.’ ” Allen v. Commonwealth, supra, quoting Lykus v. Commonwealth, 432 Mass. 160, 162 (2000). The fact that the petitioner “failed to pursue the alternative route or pursued it unsuccessfully” does not create a right to relief under G. L. c. 211, § 3. Tavares v. Commonwealth, 447 Mass. 1011, 1011 (2006).³

The single justice neither erred nor abused his discretion in denying relief.

Judgment affirmed.

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861 N.E.2d 391, 448 Mass. 1010, 2007 Mass. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilborn-v-commonwealth-mass-2007.

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